Citation NR: 9607024
Decision Date: 03/18/96 Archive Date: 03/26/96
DOCKET NO. 94-18 942 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Whether gambling winnings of $620 were properly considered as
countable income for purposes of improved pension benefits
for the period of February 1989 to February 1990.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly Jevtich, Associate Counsel
INTRODUCTION
The veteran had active service from December 1941 to November
1945.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a July 1993 decision of the Baltimore,
Maryland, Regional Office (RO) of the Department of Veterans
Affairs (VA). The notice of disagreement was received in
September 1993. The statement of the case was sent to the
veteran in September 1993. The substantive appeal was
received in April 1994.
In August 1993, the veteran was notified that an overpayment
of improved pension benefits has been created in the amount
of $2,219. The veteran was notified of his procedural and
appellate rights, however, he did not thereafter dispute the
debt or request a waiver of the debt. Therefore, the issues
of whether the overpayment was properly created and
entitlement to a waiver of that overpayment are not in
appellate status. 38 U.S.C.A. § 7105 (West 1991).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he does not gamble on horseracing
and has never been to the Laurel racetrack where the alleged
$620 in gambling winnings were won in February 1989. Rather,
he asserts that his nephew, who he states is currently
incarcerated, stole his wallet, must have won the money, and
forged his name on the W-2G, Statement of Recipient of
CERTAIN GAMBLING WINNINGS. Therefore, the veteran asserts
that the gambling winnings should not be counted as income in
February 1989.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran's claim to exclude the
gambling winnings in the amount of $620 for the period of
February 1989 to February 1990, as countable income for
purposes of improved pension benefits.
FINDINGS OF FACT
1. In a June 1982 rating decision, the veteran was awarded
nonservice-connected pension benefits effective from December
18, 1981; he was notified of the award in a June 1982 letter
which included a Form 21-8768 which set forth the veteran’s
obligations to report all income and any changes in income.
2. In December 1989, the veteran submitted an Improved
Pension Eligibility Verification Report (EVR) in which he
reported income consisting solely of Social Security payments
for the period of November 1, 1988 to October 31, 1989.
3. Information was subsequently received which revealed that
the veteran was paid $620 in gambling winnings in February
1989.
4. In May 1993, the veteran was notified that since
information had been received showing that he had received
$620 in gambling winnings in February 1989, the VA proposed
to reduce his pension benefits for the annual period of
February 1989 to February 1990 as the gambling winnings
represented income.
5. In July 1993, the RO obtained a copy of the W-2G,
Statement of Recipient of CERTAIN GAMBLING WINNINGS from the
Laurel Racing Association which showed that the veteran
presented his Social Security Card and his Driver’s License
as identification in order to be paid the $620 in winnings,
that the individual who paid the winnings apparently verified
the veteran’s identity, and that the signature on the form
appeared to match the veteran’s signature.
6. In August 1993, the veteran was advised that if the
verification of his signature was incorrect, he should submit
evidence to correct the matter.
7. Winnings from gambling are not excludable income under
the pertinent regulation.
CONCLUSION OF LAW
The $620 in gambling winnings for the period of February 1989
to February 1990, were properly considered as countable
income for purposes of improved pension benefits. 38
U.S.C.A. §§ 1503, 1521, (West 1991); 38 C.F.R. §§ 3.23,
3.271, 3.272 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In a June 1982 rating decision, the veteran was awarded
nonservice-connected pension benefits effective from December
18, 1981. The veteran was notified of the award in a June
1982 letter. A VA Form 21-8768 was enclosed which stated
that the veteran was obligated to provide prompt notice of
any change in income or net worth of his family and that a
failure to provide such would result in the creation of an
overpayment which would be subject to recovery. It further
stated that when reporting income, the total amount and
source of all income received should be reported. It stated
that the VA would compute any amount which did not count.
Thereafter, the veteran was notified on numerous occasions of
amendments to his pension benefits and was also provided VA
Forms 21-8768 which repeatedly notified him of his
obligations to accurately and promptly report changes to
income.
In December 1989, the veteran submitted an EVR in which he
reported income consisting solely of Social Security payments
for the period of November 1, 1988 to October 31, 1989. He
did not indicate that he had any other earned or unearned
income.
Information was subsequently received which revealed that the
veteran was paid $620 in gambling winnings in February 1989.
In May 1993, the veteran was notified, in pertinent part,
that information had been received showing that he had $620
in gambling winnings in February 1989. As such, he was
informed that the VA proposed to reduce his pension benefits
for the annual period of February 1989 to February 1990 as
the gambling winnings represented income. In July 1993, the
RO adjusted his award effective February 1989 as explained in
the May 1993 letter.
The veteran appealed this determination asserting that the
gambling winnings should not be included as countable income
for purposes of improved pension benefits for the period of
February 1989 to February 1990. The veteran contended that
the gambling winnings were not his own, but rather those of
his nephew who stole his identifications and forged his name
on the W-2G, Statement of Recipient of CERTAIN GAMBLING
WINNINGS.
In order to verify the veteran’s assertions, the RO obtained
a copy of the W-2G, Statement of Recipient of CERTAIN
GAMBLING WINNINGS from the Laurel Racing Association in July
1993. This form indicated that the veteran presented his
Social Security Card and his Driver’s License in order to be
paid the $620 in winnings. The individual who paid the
winnings apparently verified the veteran’s identity. The
signature on the form appeared to match the veteran’s
signature. As such, in August 1993, the veteran was advised
that if the verification of his signature was incorrect, he
should submit evidence to correct the matter.
In support of his claim, the veteran testified at a personal
hearing at the RO in February 1994. At that time, he again
presented his contentions that he does not gamble on
horseracing and has never been to the Laurel racetrack where
the alleged $620 in gambling winnings were won in February
1989. Rather, he asserted that his nephew, who he stated was
currently incarcerated, stole his wallet containing his
Social Security Card and his Driver’s License, must have won
the money, and forged his name on the W-2G, Statement of
Recipient of CERTAIN GAMBLING WINNINGS. Therefore, the
veteran asserted that the gambling winnings should not be
counted as income in February 1989. The veteran indicated
that his nephew’s mother would not testify that his nephew
stole his wallet because the nephew’s incarceration term had
been reduced and she would not want to jeopardize his early
release from prison. The veteran did not submit any
supporting documentation to verify his assertions or to show
that the signature was forged.
Under the applicable governing legal criteria, the maximum
rate of improved pension is reduced by the amount of the
countable income of the veteran. 38 U.S.C.A. § 1521 (West
1991); 38 C.F.R. § 3.23 (1995). In determining income for
purposes of entitlement to pension under the improved pension
program, payments of any kind from any source are counted as
income during the 12-month annualization period in which
received unless specifically excluded under 38 C.F.R. § 3.272
(1995). 38 U.S.C.A. § 1503 (West 1991); 38 C.F.R. § 3.271
(1995). Income from gambling winnings is not excluded under
38 C.F.R. § 3.272 (1995).
In sum, the documented evidence, the W-2G, Statement of
Recipient of CERTAIN GAMBLING WINNINGS, reflects that the
veteran was paid gambling winnings in the amount of $620 in
February 1989. The identification shown to the individual
who disbursed the winnings was the veteran’s Social Security
Card and his Driver’s License. Although the veteran asserts
that his Social Security Card and his Driver’s License were
stolen by his nephew who thereafter forged his name to obtain
the winnings, he did not submit any supporting evidence. The
signature appears to match copies of the veteran’s signature
and the official at the Laurel Racetrack indicated that the
veteran won the $620 in question as confirmed on his Social
Security Card and his Driver’s License.
In light of the law and regulations and due to the lack of
any documented evidence to the contrary, the Board finds that
it is clear that the sum of $620 paid for gambling winnings
at Laurel Racetrack in February 1989, was properly included
as countable income for purposes of the veteran's improved
pension benefits for the period of February 1989 to February
1990.
Thus, the Board concludes that the RO properly included the
$620 for the annual period of February 1989 to February 1990,
as countable income, and the veteran's improved pension
benefits were properly adjusted. The Board has carefully
reviewed the entire record in this case, but finds no doubt
as to any material issue. 38 U.S.C.A. § 5107(b) (West 1991).
ORDER
The appeal is denied.
EUGENE A. O’NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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